Bottrill v Cristian & Anor (Civil Dispute)
[2016] ACAT 7
•10 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BOTTRILL v CRISTIAN & ANOR (Civil Dispute) [2016] ACAT 7
XD 14/741
Catchwords: CIVIL DISPUTE – TORTS - DEFAMATION – respondent owner of website on which others had posted articles – publication of someone else’s defamatory statements by use of hyperlink – responsibility of person promoting defamatory statements of another – multiple publications identifying the applicant - whether pleaded imputations conveyed – imputations conveyed by articles serious – statements amounting to defamation – publication of articles damaged reputation - defence – freedom of speech – statutory defences – honest opinion – defences fail - remedies – damages – compensatory damages - damages to bear rational relationship to harm – mitigation of damages – aggravated damages – republication of articles – conduct must be lacking in bona fides, improper and unjustifiable – failure to apologise or remove articles from website in reasonable time – unjustifiable conduct established – aggravated damages awarded
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss. 6, 7, 18
Civil Law (Wrongs) Act 2002 ss.115, 118, 123, 124, 134, 135, 136, 138, 139B, 139C, 139D, 139E, 139F, 139G, 139H, 139I
Human Rights Act 2004 ss 12, 16, 30
Service and Execution of Process Act 1992 (Cth) ss 50, 51
Subordinate
LegislationACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1) r 10
Civil Law (Wrongs) Non-economic Loss Declaration 2015 NI2015-226
Cases cited:Bottrill v Van Lieshout & Ors [2015] ACAT 26
Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33
David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690
Lee v Wilson (1934) 51 CLR 276
Farquhar v Bottom [1980] 2 NSWLR 380
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Lewis v Daily Telegraph [1964] AC 234
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Piscioneri v Brisciani [2015] ACTSC 106
Ordo Templii Orientis v Legg (Anti Discrimination) [2007] VCAT 148
Ordo Templi Orientis v Legg [2007] VCAT 1484
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
List of Papers/Texts: Butterworths Concise Australian Legal Dictionary (3rd ed. 2008)
Tribunal: President E Symons
Date of Orders: 10 February 2016
Date of Reasons for Decision: 10 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL) XD 741 of 2014
BETWEEN: DAVID BOTTRILL
Applicant
AND: ARTHUR CRISTIAN
First Respondent
AND: FIONA CRISTIAN
Second Respondent
TRIBUNAL: President E Symons
DATE:10 February 2016
ORDER
Judgment for the applicant, David Bottrill, in the sum of $10,000 plus $130.00 allowable costs, being the amount sought by the applicant and the limit of the Tribunal’s jurisdiction.
Fiona Cristian is to pay the sum of $10,130.00 in Order 1 to the applicant within 28 days of the date of these Orders.
Immediately upon service of these Orders on Fiona Cristian, she is to remove all defamatory materials or like imputations relating to the applicant from the website named in the application and on any website owned or controlled by her including any hyperlinks on the internet.
……………………………..
President E Symons
REASONS FOR DECISION
Summary of Tribunal decision
The applicant brought a claim in this tribunal against Arthur Cristian and Fiona Cristian alleging that they published on the website loveforlife.com.au (‘the Love for Life website’) comments which contain defamatory imputations concerning him, individually and by virtue of his involvement with the Ordo Templi Orientis (‘the OTO’). The applicant sought orders for the removal of the material; publication of an appropriately worded apology; orders to permanently restrain the respondents from publishing further material that defames him and $10,000 damages and interest.
Judgment was entered ex-parte against both respondents on 10 December 2014 in the sum of $10,000. The judgment against Fiona Cristian was set aside and the application against her was heard in the Tribunal on 24 October 2015.
For the reasons that follow the Tribunal upholds all the relevant aspects of the applicant’s claim and rejects each of Fiona Cristian’s (hereafter referred to as ‘the respondent’) defences.
The Tribunal has found the material published on the Love for Life website and the subject of this application was defamatory, that Fiona Cristian was, at all relevant times, an owner of that website and that the defences of freedom of speech and honest opinion are not established. The Tribunal has also found that the respondent’s conduct in deliberately republishing the defamatory material on 14 December 2014 aggravated the damages to which the applicant is entitled.
The Tribunal has assessed the damages recoverable by the applicant as $10,000.00 being the jurisdictional limit of the tribunal.
In these reasons, a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal and a reference to the ‘Tribunal’ refers to the current member who heard the matter.
Background
The applicant was involved in a dispute with Michael Borusciewicz in 2014 over publications on his website - and on his Facebook page - He searched the name of Michael Borusiewicz online in May 2014 and found postings by Michael Borusiewicz which had been published on the website (‘the respondent’s website’) on 24 March 2014 in which there were numerous references to the applicant and to the OTO.
The respondent’s website was at all relevant times owned by Fiona Cristian.[1]
[1] Exhibit A2, page 1; page 231 [1]Affidavit Fiona Caroline Cristian affirmed 24 February 2015
When the applicant looked at the respondent’s website in May 2014 he found that it had published a set of words which, in part, was the subject of litigation in the ACT Small Claims Court (‘the ACT proceedings’) in 2005 between himself and Dyson Devine and Vivienne Legg.[2] The set of words was also the subject of proceedings commenced in 2005 in the Victorian Civil and Administrative Tribunal (‘VCAT’) between the OTO on behalf of David Bottrill and another and Dyson Devine and Vivienne Legg (‘the VCAT proceedings’).[3] David Bottrill was then and continues to be a member of the OTO.
[2] David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690
[3] Ordo Templi Orientis v Legg [2007] VCAT 1484
The applicant had alleged in the ACT proceedings and in the VCAT proceedings that the respondents, Dyson Devine and Vivienne Legg (‘Devine and Legg’), had, as authors and publishers, maintained websites in 2004 and 2005 which contained material which claimed that the OTO was a protected paedophile group operating in Australia. The decision in the VCAT proceedings stated in relation to these allegations at [21]:
There is direct reference to the OTO and claims that it is a protected paedophile group which is operating in Australia. The complainants allege that the natural and ordinary meaning is that OTO is not a religion, but a paedophile group operating in Victoria and that members are paedophiles.
Devine and Legg’s internet website also provided a hyperlink to another website where a document by Dr Reina Michaelson (‘the Michaelson document’) was published. The decision in the VCAT proceedings dated 27 July 2007 stated, in relation to the Michaelson document, at [24]:
...It is a description of alleged events in Victoria, including an alleged conspiracy of silence involving high profile Australian Citizens, a major television network, police and authorities and the education department around the issue of satanic and/or organised ritual sexual abuse of children. It purports to make a link between OTO and the alleged abuse. There are references in the document to OTO. The complainants allege that in their natural and ordinary meaning, the words meant and were understood to mean:
(a)OTO is not a religion, but is rather a child pornography and paedophile ring operating in Australia;
(b) members of OTO are paedophiles and producers of child pornography;
(c) members of OTO practise trauma-based mind control, sexual abuse and satanic rituals for the purpose of preventing or discouraging children reporting child abuse by members of OTO to the authorities;
(d) OTO is a satanic cult which practises blood rituals where animals and small children are sacrificed and their blood and organs consumed;
(e) OTO condones the kidnapping of street children, and babies and children from orphanages, for use and sacrifice in their satanic rituals;
(f) OTO hosts parties at which naked children act as waiters and at which members of OTO have sex with and murder the children;
(g) OTO condones the kidnapping and murder of children; and
(h) members of OTO force children to participate in the production of child pornography and to have sex with other children and adults.
In [32] of the decision in the VCAT proceedings the tribunal stated:
What is clear from the material attached to the particulars of complaint taken from the website, is that the respondents have taken up Dr Michaelson’s material, have congratulated her and have endorsed it. They have themselves said that OTO is a paedophile and satanic network enjoying high level protection and have referred to its members as satanic ritual abusers and satanist paedophiles. The site demands readers take action. It is clear from the material and all the evidence before me and all the material tendered, that the respondents, on the grounds of the religious belief of the complainants, on whose behalf representative complaints were made, by the publishing of this material incite hatred against the complainants, and contempt, revulsion and severe ridicule of them in breach of s 8 of the Act.
At [40] the tribunal ordered:
That the Respondents forthwith remove from the website specified and refrain from making, publishing or distributing in Victoria, including on the Internet whether in writing or orally and whether directly or indirectly (including by the Internet or by inserting any hyperlink on the Internet), any statements, information, suggestions or implications to the same or similar effect as those set out in paragraphs 11 and 18 of the particulars of complaint.
In 2005 the OTO, on behalf of David Bottrill and another, also brought complaints of religious vilification against the Child Sexual Abuse Prevention Program Inc (‘CSAPP’) and Reina Michaelson in VCAT[4] (‘the Michaelson Proceedings’). The complaints in the Michaelson Proceedings related to the Michaelson document (refer to [10] above), authored by Dr Reina Michaelson, and alleged to have been published on and/or the URL The website identified Dr Reina Michaelson as CSAPP’s Executive Director.
[4] Nos A131, A136 and A140
The Michaelson document purported to make a link between the OTO and the alleged abuse.[5] The OTO rejected the suggested link and stated that any such activity is abhorrent to their members.[6]
[5] Recital E of the Terms of Settlement in the Proceedings dated 27 November 2006
[6] Recital F of the Terms of Settlement in the Proceedings dated 27 November 2006
Terms of Settlement dated 27 November 2006 in the Michaelson Proceedings recited that “Dr Michaelson has not produced any proof that any OTO members are or have been involved in such practices”[7] and provided for the shutting down of the creation of a new official website of CSAPP; publishing a statement on the new website for 18 months and that These terms of settlement are public.[8]
[7] Recital G of the Terms of Settlement in the Proceedings dated 27 November 2006
[8] Terms of Settlement at [5]
On 28 June 2005, in the decision in the ACT proceedings, Magistrate Burns struck out the response “as embarrassing” and “entered judgment for the plaintiff against the defendants in the sum of $9,998.00.’
The Concerns Notice
After reading the information on the respondent’s website the applicant telephoned the respondent and demanded that the information be removed from the respondent’s website. The applicant sent a ‘Concerns Notice’ (‘the notice’) pursuant to the Civil Law (Wrongs) Act 2002 (‘CLW Act’) to the respondents’ email on 17 May 2014. The Notice[9] stated:
[9] Exhibit R1, page 7
Subject: Defamatory material on your website- loveforlife.com.au
From: David Bottrill [email address]
Date: 17/05/2014 8:53 PM
To: [email protected]Arthur and Fiona Cristian
Mr and Mrs CristianI refer you to page contains a number of comments which defame me; the text contains imputations that I, the OTO and others, constitute a satanic organisation which engages in a range of criminal activities which include murder, paedophilia, and cannibalism. In particular the page contains a number of comments authored by Dyson Devine and Vivienne Legg and more recently by Michael Borusiewicz.
Some of these materials reference the previous cases conducted in the ACT and Victoria against Devine and Legg and include text which acknowledges that no evidence was produced to support these outlandish claims making your republication of this material either malicious or negligent.
This defamatory material should be removed immediately. In its and in its place you should post an apology which advises regret at publishing the previous defamatory material, admitting you have no evidence to support any of the claims made, and apologise for any hurt or distress caused by your actions. You should also make an appropriate offer of amends which reflects the injury caused by being falsely accused of such acts.
Within 24 hours of your receipt of this advice you should advise me by email to me as to what steps have and will be taken to comply with the above. If you fail to provide a satisfactory response or publish further false and defamatory material I reserve all rights including commencing proceedings against you and shall rely on this letter on the matter of damages and may seek exemplary damages and indemnity costs reflective of the length of time this material is online.
This material has been viewed in the Australian Capital Territory where I reside so I refer you to the Civil Law (Wrongs) Act 2002.
Yours sincerely
David Bottrill
[email address]On 19 May 2014 the applicant emailed the notice again to the respondents and stated in his email[10]:
[10] Exhibit R1 page 8
Mr and Mrs Cristian
I refer to my previous email to you (see copy below) and note that despite receiving this the defamatory content is still on line and available on your website.
This should be removed and you should advise me immediately that this has been done.
Any further delay and I will assume that you do not intend its removal and take action accordingly.
David Bottrill
The Proceedings
Background to the present ACT Civil and Administrative Tribunal proceedings
On 22 May 2014 the applicant filed a Civil Dispute Application (‘the Application’) with the ACT Civil and Administrative Tribunal (‘the tribunal’) against the respondents. The applicant alleged in the application that the respondents have published on the website loveforlife.com.au a number of comments which contain defamatory imputations concerning him, individually and by virtue of his involvement with the OTO. The applicant sought orders for the removal of the material; publication of an appropriately worded apology; orders to permanently restrain the respondents from publishing further material that defames him and $10,000 damages and interest.
On 28 May 2014 the tribunal posted the application, notice of dispute, response and notice pursuant to section 51 of the Commonwealth Service and Execution of Process Act 1992[11] to Arthur and Fiona Cristian at their residential address. The envelope containing the material was returned to the tribunal endorsed ‘Return to Sender’.
[11]Section 50. Initiating process may be served in any part of Australia
(1) An initiating process issued in a State may be served in another State.
(2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. ...
Section 51 Information to be provided
Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.
On 26 June 2014 the tribunal made orders pursuant to rule 10 of the ACT Civil and Administrative Procedural Directions 2010 that the initiating process will be deemed to have been validly served if sent to [email protected] with delivery and read notifications enabled. The order dated 26 June 2014, the application, response form and various notices in relation to the matter XD 14/741 were emailed to the respondents and the applicant by the tribunal on 3 July 2015. The tribunal received the following notification in response to its email sent on 3 July 2014: Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server: mailto:[email protected] <mailto.david.bottrill [email address]…>.
On 27 August 2014, the tribunal conducted a directions hearing. The applicant appeared at the directions hearing. The respondents had not filed a response and there was no appearance by or on behalf of the respondents at the directions hearing. The tribunal made the following orders (‘the orders’):
1. Judgment is entered for the applicant for damages to be assessed and orders to be decided.
2. The matter is listed for assessment and determination of orders to be made on Wednesday 10 December 2014 at 10:00 am.
3. The applicant is to file with the ACT Civil and Administrative Tribunal by 30 November 2014 all evidence and documents on which he proposes to rely at the hearing including:
(a) Notices issued to the respondents under Civil Law (Wrongs) Act; and
(b) Witness statements as to publication and loss of reputation.The orders were emailed to each of the respondents at [email protected] on 10 September 2014. On 10 September 2014 the tribunal received notification by email that delivery to the recipients is complete but no delivery notification was sent by the destination server.
In her affidavit affirmed 24 February 2015 and filed in the Supreme Court proceedings and included in Exhibit A2 in the present proceedings[12] the respondent in the present matter before the Tribunal said:
We had received some envelopes from ACAT previously, addressed to Arthur Cristian. As Arthur has no contracts with the system through the legal fiction “Arthur Cristian”, having given up bank accounts, contracts for service, employment, driver’s licence, Centrelink, Medicare and all other contracts by mid 2006, he had returned the envelopes as he does not use the legal fiction name to perform in commerce. Arthur had also seen some emails come from ACAT with both of our names on them but he had bounced them back from the mail server without downloading them, not thinking about the fact that my name was on them too. This is how I knew nothing about the proceedings and why I did not respond and attend the hearing on 10 December 2014.
[12] Exhibit A2, at page 232, [8]
On 28 November 2014 the applicant filed a Statutory Declaration by Debra Thomas dated 19 August 2014.
On 10 December 2014 the applicant attended the hearing. Neither of the respondents attended the hearing. The Tribunal made the following orders:
1.The Tribunal assesses damages at $10,000 with allowable costs of $130.00 being the amount sought and the limit of the Tribunal’s jurisdiction.
2.The respondents are to pay $10,130.00 to the applicant within 28 days.
3.Immediately upon service of this order on the respondents, the respondents are to remove the defamatory materials relative to the applicant from their website
4.The respondents are permanently restrained from publishing or continuing to publish any and all defamatory material relative to the applicant on any website owned or controlled by the respondent.
The orders were emailed to each of the respondents at [email protected] on 12 December 2014. On 12 December 2014 the tribunal received notification by email that delivery to the recipients is complete but no delivery notification was sent by the destination server.
The Appeal - AA 15/01
On 5 January 2015 Fiona Cristian (‘the appellant’) appealed the tribunal’s decision dated 10 December 2014. Arthur Cristian did not appeal the Tribunal’s decision.
Both the appellant and the respondent attended a directions hearing on 28 January 2015 and the Appeal Tribunal made the following orders:
1.The matter is adjourned for hearing on the question of an appeal from an ex-parte hearing to Friday 20 February 2015 at 10:00 am.
2.The appellant is to remove the defamatory material relative to the respondent from the website:
3.The appellant is restrained from publishing or continuing to publish any and all defamatory material relative to the respondent on any website owned or controlled by the appellant until further order.
On the application of the respondent alleging that the appellant was breaching the orders made on 28 January 2015 the matter was relisted for an urgent hearing on 12 February 2015.
Both the appellant and the respondent attended the hearing on 12 February 2015. Appeal President Stefaniak made the following orders on 12 February 2015:
1.As a result of the appellant failing to comply with order number 2 and 3 made at the directions hearing on 28 January 2015, pursuant to ACT Civil and Administrative Tribunal Procedure Rules 20(1)(a), the appeal is dismissed.
2.Upon the appeal being dismissed the hearing listed for Friday 20 February 2015 at 10:00 am is vacated.
The Supreme Court proceedings - SCA 12/2015
On 24 February 2015 Fiona Cristian applied to the ACT Supreme Court for leave to appeal against the orders made by the Appeal President on 12 February 2015.
On 15 July 2015 Burns J of the ACT Supreme Court set aside the decision of Appeal President Stefaniak of 12 February 2015, set aside the tribunal orders entering judgment against Ms Cristian on 10 December 2014 and remitted the matter to the tribunal for further hearing.
The present hearing in the tribunal
Arthur Cristian did not contest the applicant’s application. At the hearing, Fiona Cristian made it clear to the Tribunal that she was only appearing for herself and that she was not representing Arthur Cristian. The judgment against Arthur Cristian dated 10 December 2014 stands.
At a directions hearing on 26 August 2015 a timetable was made for the filing of material including witness statements that each party intended to rely on at the hearing and the matter was listed for hearing on 21 October 2015.
The respondent, Fiona Cristian, filed her response on 24 September 2015.
On 6 October 2015 the applicant filed a report from Professor Douglas Ezzy, Professor of Sociology, University of Tasmania, dated 5 October 2015, and the materials on which the applicant relied.
The application against Fiona Cristian (‘the respondent’) was heard on 21 October 2015.
The applicant represented himself. The respondent represented herself and participated in the hearing by telephone.
The applicant gave evidence and was cross examined. He tendered his application and the 86 pages of annexures (Exhibit A1); his letter dated 6 October 2015 and the 249 pages of annexures (Exhibit A2); the Statutory Declaration of Debra Thomas dated 19 August 2014 (Exhibit A3) and Professor Ezzy’s report dated 5 October 2015 (Exhibit A4). Professor Ezzy gave evidence by telephone and was cross examined. Debra Thomas was not required for cross examination.
The respondent gave evidence and was cross examined. She tendered her response and the 7 pages of annexures (Exhibit R1).
The applicant and the respondent each made oral submissions. At the conclusion of the hearing the Tribunal reserved the decision. This is the Tribunal’s decision.
Relevant Law
Since 1 January 2006, defamation in all States and Territories has been governed by the national uniform defamation laws. In the ACT the uniform defamation laws are encapsulated in chapter 9 of the Civil Law (Wrongs) Act 2002 (‘CLW Act’). Common law principles of defamation are largely retained except to the extent that the Act provides otherwise, pursuant to section 118.
The objects of chapter 9 of the CLW are found in section 115 and are:
115Objects—ch 9
The objects of this chapter are—
(a)to enact provisions to promote uniform laws of defamation in Australia; and
(b)to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
(c)to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
(d)to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
NoteThe Human Rights Act 2004 provides for the following human rights that are particularly relevant to this chapter:
· privacy and reputation (see s 12)
· freedom of expression (see s 16).
Under the Human Rights Act 2004, s 28 human rights may be subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society.
Section 118 of chapter 9 of the CLW Act states:
118Tort of defamation
(1)This chapter relates to the tort of defamation at general law.
(2)This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
(3)Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as in force immediately before the commencement of this section had never been enacted.
Applicant’s contentions
The applicant contended that:
(a)the respondent is the owner of the website which has published material accusing him of being a satan worshipper; a paedophile satanist; a child stealer; as covering up for paedophiles; as a member and National Treasurer of the OTO which is a devil worshipping group, who are advocates of torture, rape, child sacrifice, pederasty and cannibalism; as being involved in the ritual abuse of children, child pornography and paedophilia, blood ritual involving the sacrifice of small children and animals, satanic rituals and the murder of small children and of using his position in government to import and export sex slaves and people to sacrifice and whom should be followed by police. The applicant is clearly identified in the materials;
(b)the materials published contain defamatory comments and provide a hyperlink to the website run by Michael Borusiewicz which contains further defamatory materials;
(c)the respondent ought reasonably to have known that the materials were defamatory;
(d)the respondent ratified or assumed responsibility for the defamatory materials;
(e)the respondent had a reasonable opportunity to remove the materials;
(f)the respondent has not met the requirements of the available defences provided by division 9.4.2 of the CLW Act;
(g)no apology, retraction or offer of amends have been made by the respondent;
(h)the respondent has persisted in defending the proceedings, asserted the truth of the allegations made and upon becoming aware of the Tribunal’s decision against Arthur Cristian and herself on 10 December 2014 published further materials in December 2014 with malice which clearly identify the applicant by name, photograph, work contact details and home address and state: The name of “David Bottrill” has been linked over and over again by many, many unrelated people to the importation of children from other countries for ritual sacrifice amongst other claims involving pedophilia; …
(i)the applicant’s good reputation is presumed;
(j)damages are presumed and the damages sought are appropriate; and
(k)interest should be applied from the time of publication.
Respondent’s contentions
The respondent contended in the annexures to her response:
(a)On the 24th March 2014, Michael Borusiewicz of Luke’s Army posted a comment in the Love For Life.com.au website mentioning David Bottrill. I was not aware of the comment at the time. I became aware of it when my partner, Arthur, told me that David Bottrill rang the private family phone number demanding that the comment be taken down. Around the same time, on the 17th May, 2014, I received an email from David Bottrill asking me to remove the comment. He emailed me again on the 19th May 2014, repeating his request. In the meantime I had contacted Michael [Borusiewicz] and asked him if he had any proof to back his claims and gave him three weeks to produce any. When he failed to do so, I removed the comment and sent an email to David Bottrill on the 3rd June 2014, telling him that I had done so.[13] The matter was resolved just as David had requested, so I expected to hear nothing more about the matter.
[13] The email stated: As of 5.00am 3rd June 2014, the name “David Bottrill” has been unpublished or sanitised from this link/post, including comments.
-
(b)The original comment posted by Michael Borusiewicz included a whole thread from Michael’s website, Luke’s Army, that included details of the bid by the Ordo Templii Orientis (OTO) to shut down the website of Dyson Devine and Vivienne Legg, the GaiaGuys.net, on the grounds of defamation. The OTO were successful and the thread included details of what was said in court, as well as OTO members posting their points of view in response to comments made by others. This is freedom of speech in action. All this thread posted by Michael Borusiewicz was removed when we received the emails from David Bottrill.
(c)However, the same thread ... had been up on the Love For Life website since 2008.
(d)… from 2008 to May 2014, we have never received a complaint by any of those involved or from anybody representing the OTO.
(e)…David Bottrill described himself as “the public face of the OTO’. He also admitted that ‘the religious arm’ of the OTO, called Thelema, is based on the works of Aleister Crowley. Just a tiny amount of research into Aleister Crowley reveals that he was a man who was heavily into black magic, Freemasonry, Satanic ritual, pederasty, bestiality and drugs. While I comprehend that members of the OTO claim that they do not practice all these habits, how can David Bottrill expect to be the “public face of the OTO” and not have some heat come to him over these subjects? Why does he choose to align himself with such a group if he does not approve these habits?
(f)In Australia we have the right to religious freedom. But we also have the right to critique religious organisations.
(g)I have spent many, many hours going through the material on the Love For Life website, mostly [posted] by Arthur [Christian] since the 14th December, 2014, checking any comments concerning David Bottrill and altering them or removing them, over and above what I thought necessary to remove anything that might be defamatory.
(h)The Love For Life website was set up as a voice for men and women to express the suffering they have gone through at the hands of those who run ‘The System’, which is why the comments are very, very rarely censored or removed. We stand for true freedom of speech and the Love For Life website is very well known for this.
(i)The Love for Life website is non profit and non commercial.
(j)From the start of this matter I have done everything in reason to resolve it.
Issues
The following are the issues for determination:
(i)Whether the words complained of are defamatory;
(ii)Whether the respondent is liable as the owner of the website and webpage at the time of the upload of the words complained of and at the time of notification by the applicant?
(iii)If issues (i) and (ii) are answered in the affirmative, whether the respondent’s defences of freedom of speech and honest opinion are established; and if not
(iv)The quantum of damages.
Consideration
Issue (i). Whether the words complained of are defamatory
The grounds of the application claim that the respondent published on her website a set of words which contain defamatory imputations that the applicant, individually and by virtue of his involvement with the OTO is a satanist, is a member of a satanic organisation and engages in criminal activities which include murder, paedophilia and cannibalism.
In the ACT Supreme Court decision of Piscioneri v Brisciani[14] (‘Piscioneri’) published on 6 May 2015 Burns J considered a claim for defamation in relation to statements made as part of a thread of posts on a particular topic on a website. He set out the following concise and helpful summary of defamation which the Tribunal adopts. His statements are particularly pertinent to the present matter:
The common law provides that, in order to make out a cause of action in defamation, the plaintiff needs to establish three elements. These are publication, identification and defamatory meaning.[15]
[14] [2015] ACTSC 106
[15] [2015] ACTSC 106, [44]
The Tribunal will consider each of these elements in turn.
Publication
In the High Court decision of Lee v Wilson[16] Dixon J said:
It is the publication, not the composition of a libel, which is the actionable wrong. Often the person sued for publishing is not the writer.
[16] (1934) 51 CLR 276, 287
Burns J said in Piscioneri in relation to publication:
47. The term ‘publication’ is not defined in the Act and, as such, the common law definition applies. It is well settled at common law that, in the context of defamation, publication is the communication of defamatory matter of and concerning the plaintiff to some person other than the plaintiff. Publication need only be to one person and may occur by almost any method of communication. Section 116 of the Act defines ‘matter’ to include:
a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication.It is clear to the Tribunal that the Love For Life posts fall within the meaning of the term ‘matter’ and were published within the common law meaning of the term ‘publication’.
At [48] in Piscioneri Burns J said:
48. The place of publication with regards to material published on the internet is the place where the material is downloaded on to the computer of a person who has used a web browser to pull the material from the web server, as this is where the damage to reputation may be done: see Dow Jones & Co v Gutnick (2002) 210 CLR 575. …
The choice of law for defamation proceedings is found in section 123 of the CLW Act, which states:
123Choice of law for defamation proceedings
(1)If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.
(2)If there is a multiple publication of matter in more than 1 Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.
(3)In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account—
(a)the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and
(b)the extent of publication in each relevant Australian jurisdictional area; and
(c)the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and
(d)any other matter that the court considers relevant.
(4)For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section.
(5)In this section:
Australian jurisdictional area means—
(a)the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or
(b)the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or
(c)any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence.
geographical area of Australia includes—
(a)the territorial sea of Australia; and
(b)the external territories.
multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.
There was no dispute in the present matter that the Love For Life posts were downloaded in the ACT. The applicant testified that he downloaded the posts in the ACT. Debra Thomas stated in her Statutory Declaration[17] that she viewed this website in the ACT. The ACT is therefore an appropriate jurisdiction in which to bring this claim.
Identification
[17] Exhibit A3, [1]
Identification of the applicant is an essential element in the claim for defamation.[18] The identification of the applicant was not in issue. He was clearly identified by name in the posts in March 2014 and in the posts in December 2014 and following. In some of the posts he was identified by name and photograph as well as by his work place email addresses; his work place occupation and address; his workplace telephone numbers and his residential address.
Defamatory Meaning
[18] Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371 per Samuels JA
The law of defamation is the area of law that deals with protection of reputation. Defamation is defined as:
The tort of publishing to persons, other than the person defamed; imputations the effect of which is to lower the reputation of the person in the eyes of the public at large.[19]
[19] Butterworths Concise Australian Legal Dictionary 3rd ed. 2008
The law of defamation is concerned with the meaning conveyed by a publication, namely the imputations. An imputation is any statement about a person that asserts or attributes an act or condition to that person and includes the natural and ordinary meaning as well as true innuendoes.
In Piscioneri at [53] Burns J stated:
53. Common law principles determine what is defamatory in relation to both the 2005 ZGeek posts and the 2010 ZGeek posts. A publication is defamatory of a person if it tends, in the minds of ordinary and reasonable people, to injure his or her reputation either by:
(a) causing them to think less of the plaintiff in the sense that it disparages him or her, conveying something to his or her discredit;
(b) causing others to shun or avoid him or her; or
(c) subjecting him or her to hatred, ridicule or contempt.
In determining whether the words complained of are defamatory it is necessary for the Tribunal to consider the following:
(a)Whether the words are capable of a defamatory meaning as understood by ordinary members of society; such a person is said to be of fair, average intelligence, who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse, overly suspicious, nor avid for scandal. The ordinary reasonable reader does not live in an ivory tower. He or she can, and does, read between the lines, in the light of his or her general knowledge and experience of worldly affairs. An ordinary reasonable reader is a lay person and not a lawyer and his or her capacity for implication is greater than that of a lawyer.[20]
(b)The ordinary reasonable reader takes into account the forum[21] and considers the publication as a whole and considers the context as well as the words alleged to carry a certain imputation or be defamatory.[22]
(c)If there is a defamatory meaning part of the publication, but in another part this is removed or clarified, the contradictory assertions must be read together with the defamatory ones. This does not mean that the reasonable reader gives equal weight to every part of the publication and he or she may take into account emphasis applied by the publisher such as conspicuous headlines or captions.[23]
(d)A reasonable reader attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.[24]
(e)Whether the words contain a false imputation in relation to the applicant by which his reputation is likely to be injured or his profession or trade is likely to be injured or by which other persons are likely to shun or avoid him or which expose him to hatred, ridicule and contempt.
[20] Lewis v Daily Telegraph [1964] AC 234, 258; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 [23] – [26]; Farquhar v Bottom [1980] 2 NSWLR 380, [21] – [22]
[21] John Fairfax Publications Pty Ltd v Rivkin [26]; Farquhar v Bottom [24]
[22] Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 638; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 [17]
[23] John Fairfax Publications Pty Ltd v Rivkin [26]-[27]; Mirror Newspapers Ltd v World Hosts Pty Ltd (646)
[24] Lewis v Daily Telegraph Ltd (259)-(260); John FairfaxPublications Pty Ltd v Rivkin [26]
The applicant provided the Tribunal with 86 pages (Exhibit A1) printed by him on 16 May 2014 from the respondent’s loveforlife.com website which contained the sets of words which had been posted at various times by various authors and published by the respondent. He also provided the Tribunal with a further 249 pages (Exhibit A2) printed on 11 July 2014; 3, 22, 28, 29 and 30 December 2014; 12 and 18 February 2015; 10 and 18 March 2015; 12, 26 and 29 May 2015 and 8 and 9 September 2015 which included pages from the same website, other documents and Google searches.
There are numerous references in the sets of words in Exhibit A1 to the OTO, who are advocates of torture, rape, child sacrifice, pederasty, cannibalism[25]; that David Bottrill is the National Treasurer of the OTO; that the applicants in the ACT proceedings actually involve themselves in the ritual abuse of children, child pornography and paedophilia, blood ritual involving sacrifice of small children and animals, satanic rituals and the murder of small children[26]; and that the OTO is a violent and cruel network[27].
[25] Exhibit A1, page 5
[26] Exhibit A1, page 5
[27] Exhibit A1, page 6
The sets of words in the previous paragraph were published by Arthur Cristian on 30 January 2008[28] on the respondent’s website from news and articles about GaiaGuys Vivienne Legg and Dyson Devine. These sets of words still appeared on the respondent’s website on 16 May 2014.[29]
[28] Exhibit A1, page 1
[29] Exhibit A1 pages 1-16
The respondent’s website published the following words by Michael Borusiewicz on 6 March 2014:
David Bottrill insists upon covering up for paedophiles
Submitted by Lukes Dad
On Thu, 03/06/2014 - 16.50
Fight Child Protection Department Corruption:Note: From my research I believe David Bottrill is part of a devil worshipping group. The “O.T.O” was founded by Aleister Crowley known as the wickedest man in the world. No wonder this low life does not want anyone to know about the O.T.O. David Bottrill is not just part of the O.T.O, he the national treasurer which leads one to wonder how sinister this man really is. I would hope the federal police follow this man each halloween to ensure he is not sacrificing babies. What sort of man devotes himself to protecting the order of a paedophile satanist??? David Bottrill.
On 24 March 2014 the respondent’s website published the following comment[30] by Michael Borusiewicz at 8.45 am:
I am being sued by David Bottrill from the OTO
My turn to tangle with this bunch of low lives. You can find the email this satan worshipper sent to me and all the info I have collected so far on David Bottrill and the OTO on this blog I have started. Thankyou for your support. We need to stand up to these secretive groups especially with members like David Bottrill who hold positions of power in the government where he could easily import and export sex slaves and people to sacrifice.
Exhibit A1, page 16
The Tribunal noted that immediately below this comment the respondent posted the following words promoting the comments in the previous paragraph:
A copy of the webpage (refer to above link) is below.
We had no time to include any photos, etc so please visit the link to see the pictures, graphs etc.
Arthur & Fiona Cristian
Love for Life
24th March 2014 - 4.33pmThe respondent’s website published a letter (a concerns notice pursuant to the CLW Act) from the applicant to Michael Borusiewicz which contained the applicant’s residential address. Following that publication the respondent published a series of posts to the applicant on her website from Michael Borusiewicz as ‘Lukes Army’ and ‘Luke’s Dad’ and from Annette Bornemann and also from ‘Help Fight Child Protection’ and another including:
From [email protected] 7.21
To David.
So you believe the things which Reina Michaelson has exposed should be covered up. Are you some sort of paedophile too? What sort of sick person tries to stand over people to cover up for paedophiles?[31]
[31] Exhibit A1, page 19
From Annette Bornemann 03/08/2014 20:43
Mr Bottrill I have forwarded the information that you so dearly wanted removed And this statement received (sic) to the Royal Commission into Abuse enquiry Any concerns of your part towards these events will be dealt with accordingly And not limited to incarceration[32]
[32] Exhibit A1 page 19
From Help Fight Child Protection 03/09/2014 19.53
Michael Ive(sic) been heavily researching the o.t.o. & the pedo rings. Your life is now in danger by the o.t.o. thugs in my opinion. You are onto huge truth as you probably can feel in your heart & soul. Please consider setting up a dead mans(sic) trigger in the event they do take you out….[33]
[33] Exhibit A1 page 19
From Help Fight Child Protection 03/10/2014 14:28
Good work Michael when the paedophiles begin the threats then you know you have them worried about exposure. Now that you have increased the exposure this freemason prick might think twice about writing threatening letters next time.[34]
[34] Exhibit A1 page 20
From Help Fight Child Protection 03/19/2014 17:16
Message to David Bottrill Satan Worshipper[35]
[35] Exhibit A1 page 20
From Lukes(sic)Dad 03/20/2014 11:45
Elite secret groups responsible for theft of children
Many of us here have resigned ourselves to the fact that once your children have been targeted by these predators… you need to look at these groups … OTO…[36]
[36] Exhibit A1 pages 21, 22
From Lukes(sic) Dad 03/20/2014 11:52
Freemasons exposed as Satan Worshippers[37]
[37] Exhibit A1 page 26
From Help Fight Child Protection 03/24/2014 00:46
David Bottrill Outreach Officer Dept Immigration and Citizenship
David Bottrill has been involved in reworking the laws regarding employing people from overseas, ie, giving away our jobs to people who are happy to work for much less money. Thanks David.[38]
[38] Exhibit A1 page 26
David Bottrill, Outreach Officer from the Department of Immigration and Citizenship to the ACT & Region Chamber of Commerce and Industry, [email protected] [39]
[39] Exhibit A1 page 27
…. you are a devil worshipper[40]
[40] Exhibit A1 page 27
f(sic) your cult is hurting children, then yes, you might be in line for some violence returned, from the families of your victims maybe? Is that what you fear? Or just general Dudley Do Gooders, who MIGHT want to punch or kick you. Yet the article [the Dr Michaelson article] discusses pre-school children being physically and sexually abused by adults. In what universe is that all right, and to hit the people doing it to them, not?[41]
[41] Exhibit A1 page 27
From Help Fight Child Protection 03/24/2014 00:58
David Bottrill head of Satanist Cult suing for telling truth[42]
[42] Exhibit A1 page 27
A thought had come into my head one day, that the girl who was taken from Qld last year, and turned up in Ireland, after having been sold into the sex slave industry, would not have had the ability or funds to obtain a passport. Maybe David pulled some strings behind the scenes.[43]
Now all of a sudden I have David Bottrill on my tail too. Government protecting child stealers[44]
From Help Fight Child Protection 03/24/2014 02:00
David Bottrill sues Australian of the year to hide paedophiles[45]
From Help Fight Child Protection 03/24/2014 02:31
Are Judges and Police Doing the Dirty Work For David Bottrill
From Help Fight Child Protection 03/24/2014 02:43
David Bottrill finds corrupt judge to jail people and hide truth[46]
From Lukes(sic) Dad 03/24/2014 at 2:50
Will a devil worshipper shut down the Luke’s Army site?[43] Exhibit A1 page 27
[44] Exhibit A1 page 28
[45] Exhibit A1 page 28
[46] Exhibit A1 page 34
The respondent’s website has many more posts by Lukes (sic) Dad on 24 March 2014 in which he, inter alia, identifies David Bottrill as - Industry Outreach Officer A senior Government immigration official… Tel: (number provided), Mobile (Number provided) and his email addresses at Department of Immigration and ACT Chamber of Commerce and Industry[47]; and where he states David Bottrill from OTO standover satanist protecting OTO secrets[48]; Royal Commission into OTO needed over child sacrifices[49]; David Bottrill OTO Satan Worshipping Paedophile – is he really?[50] OTO – rape, torture, cold-blooded murders on the largest scale[51]; David & OTO $30k payout for being devil worshippers[52].
[47] Exhibit A1 pages 44, 45
[48] Exhibit A1 page 63
[49] Exhibit A1 page 68
[50] Exhibit A1 page 66
[51] Exhibit A1 page 69
[52] Exhibit A1 page 64
Included in the various posts published on 24 March 2014 on the respondent’s website was a letter from gaiaguysnet signed by Vivienne Legg and Dyson Devine dated 11 September 2005[53] which included the following statements:
Ordo Templii Orientis v gaiaguys
…a formal network of Australians whose rituals and texts reveal that they swear to defend the right to do as they will, to slay, to torture, to ritually sacrifice children, to love whomever they will, to have no mercy, to eat human flesh and to kill those who thwart them.
…
Networks of blood thirsty child abusers are welcomed as legitimate religions/corporations and given tax-exempt status,…
[53] Exhibit A1 page 65, 66
Interspersed throughout the posts on 24 March 2014 by Michael Borusiewicz and published on the respondent’s website are sections of texts authored by Dyson Devine and Vivienne Legg which were the subject of the ACT proceedings and the VCAT proceedings. A summary and commentary of the ACT proceedings by GaiaGuys.net was published by the Respondent’s website.[54]
[54] Exhibit A1 pages 29,30
Also on 24 March 2014 a summary of the VCAT proceedings was posted and published on the respondent’s website[55] followed by the media release from the OTO dated 29-11-2006 which included the following statement:
We are pleased to announce that we have signed public terms of settlement in our religious vilification precedings (sic) against Raina Michaelson and CSAPP. Full details of this settlement can be found at the links available below: Ordo Templii Orientis Australia|LEGAL.[56]
[55] Exhibit A1 pages 34, 35
[56] Exhibit A1 page 28
After this post the following comment was published on the respondent’s website: Greedy scum, suing everyone for compensation, when guilty as sin[57].
[57] Exhibit A1, page 28
A copy of the public Terms of Settlement in the Michaelson proceedings was also posted on the respondent’s website.[58]
[58] Exhibit A1, pages 36, 37, 38
The various posts referred to above were still appearing on the respondent’s website on 16 May 2014.
On 3 December 2014 the applicant entered ‘Bottrill site:loveforlife.com’ in a Google custom search and found the following words ‘David Bottrill & His Satanic O.T.O. Paedophile Networks Threatening to attack LoveForLife.com.au And Fiona Cristian Arthur & Fiona Cristian’ on these webpages - loveforlife.com.au/…/psyop-program-scam-behind-religion-belief-faith – 11 June 2014; loveforlife.com.au/…/world-words-world-lies-arthur-cristian-love-life-13 June 2014; and loveforlife.com.au/…/another-delusion-posted-arthur-cristian-love-for-life 11 June 2014.[59]
[59] Exhibit A2, page 17
A number of the posts on the respondent’s website are published more than once on the website. Hyperlinks are frequently used.
In the New South Wales Supreme Court decision of Visscher v Maritime Union of Australia (No.6)[60] Beech-Jones J considered the Australian approach to liability for defamation in relation to material that can be accessed from a website via a hyperlink. He found that the defendant was, by virtue of the hyperlink, a publisher of the linked article, as its inclusion amounted to an adoption or promotion of its defamatory content that gave rise to an acceptance of responsibility for its publication.
[60] [2014] NSWSC 350 at [30]
A number of the hyperlinks on the respondent’s website were to the website, owned and operated by Michael Borusiewicz.
In 2014 the applicant had brought a claim in defamation against Michael Borusiewicz in the tribunal (XD14/772) for publications on his website, That claim did not include the publications on the respondent’s website. On 10 December 2014, after a defended hearing, the tribunal found that the materials published were defamatory, entered judgment for the applicant for $10,000 plus costs and interest and made orders, inter alia, for the removal from Michael Borusiewicz’s website of the photographs of the applicant and all defamatory materials (‘the Borusiewicz website decision’).
In 2014 the applicant also brought a claim for defamation against Michael Borusiewicz and others in the tribunal (XD 14/773) for publications on the Facebook page located at Michael Borusiewicz defended this application. In the Tribunal’s decision[61] dated 31 March 2015 (‘the Borusiewicz Facebook decision’) the Tribunal found that the materials were defamatory, entered judgment against Michael Borusiewicz for $10,000 plus costs and interest and made orders, inter alia, for the removal from his Facebook page of all photographs of the applicant and all defamatory material relating to the applicant.
[61] [2015] ACAT 26
The Tribunal is satisfied and finds that the respondent failed to produce any evidence that would enable it to be satisfied that there was any truth in the statements that the O.T.O. members and the applicant are or have been involved in satanic and/or organized ritual sexual abuse of children or of importing and exporting sex slaves and people to sacrifice; or that the applicant is an advocate of torture, rape, child sacrifice, pederasty[62], cannibalism or that the applicant engages in criminal behaviour.
[62] Sexual relations between two males, especially when one of them is a minor. Dictionary.com
In fact, when cross examining the applicant, the respondent referred to Professor Ezzy’s report and his statements that:
many OTO members or devotees of Aleister Crowley say that his writings are misinterpreted, as in when they talk about sacrificing children its not actually sacrificing and sex with boys, et cetera, is not actually about that and that’s been misinterpreted.
The respondent then conceded:
Now, obviously I’m not in a position to determine whether that’s the case.[63]
[63] Transcript of Proceedings 21 October 2015 page 60, lines 17 to 21
The applicant called evidence in relation to the O.T.O. from Professor Douglas Ezzy, Professor of Sociology and previously Head of the School of Sociology and Social Work at the University of Tasmania. He is the current president of the Australian Association for the Study of Religion, which is the main academic association for the study of religion in Australia. He is also a member of the Contemporary Pagan Studies Group, the American Academy of Religion and on their steering committee and the editor of the Journal for the Academic Study of Religion, the main Australian based journal that publishes religious studies and academic work.
Professor Ezzy stated in his report[64] he was:
… significantly informed by a 2006 report to VCAT on the OT.O.by Professor Rowan Ireland. I have quoted extensively from that report and provided additional information based on my own research. My information about the O.T.O.is based on reading of various Crowley and Thelemic texts, academic literature about the O.T.O. and similar new religious movements and informal conversations I have had with other academics about the O.T.O.
[64] Exhibit A4, page 1
Professor Ezzy described the OTO as a small international religious movement modeled on Freemasonry and heavily influenced by the writings of Aleister Crowley who became the head for much of the first half of the twentieth century.[65] The report stated that the OTO is clearly a religious organisation; it has rules of association, the ritual practices are clearly set out and policed and there is an established set of interpretations of religious beliefs and texts.[66]
[65] Exhibit A4, page 1
[66] Exhibit A4 page 5, 4.1
In response to the question[67]-
Do you think it likely if the OTO was practicing child sacrifice, paedophilia and cannibalism that may have actually come to the attention of law enforcement?
Professor Ezzy said:
Yes, indeed…. I would say it was extremely unlikely that this is a systemic or organisationally organised aspect of the OTO.
[67] Transcript of Proceedings 21 October 2015 page 80, line 24
Professor Ezzy stated in his report:[68]
Some aspects of the O.T.O. are informed by erotic ideas and make use of sexual symbolism as part of their ritual practice. … It is easy to misunderstand the role of sexuality in the O.T.O. …
[Professor Rowan] Ireland makes the point that the primary aim is self-discovery: “Magick [Crowley’s spelling] in Thelemic religion refers to Aleister Crowley’s system of spiritual; discovery of individual will/vocation. The magical instructions underpinning the system involve use of tarot cards, yoga, meditation and several other practices including Tantric-based sex magick. The latter refers not to specific sex acts, but to a variety of practices which are believed to advance the recovery of the occluded, unconscious self through acknowledgement, stimulus and harnessing of the libido ….
[68] Exhibit A4 page 4, 3.5
In his report[69] Professor Ezzy also stated:
3.6 Crowley, child sacrifice and the O.T.O.
In Crowley’s writings there is an often misunderstood reference to child sacrifice: “For the highest spiritual working one must accordingly choose that victim which contains the greatest and purest force. A male child of perfect innocence and high intelligence is the most satisfactory and suitable victim.” And in a footnote: “It appears from the Magical Records of Frater Perdurabo that he made this particular sacrifice on an average about 150 times every year between 1912 e.v. and 1928 e.v.”(Crowley 1994:204)
In a version of this Crowley text published by the O.T.O., the editors provide a commentary on this quotation in a footnote: “Although Crowley intersperses cautions against literal interpretations of his remarks throughout this chapter, his detractors frequently cite this statement out of context to assert that he advocated literal human sacrifice, a practice he repudiated” (Crowley 1994:204)
The academics Jenkins and Maier-Katkin (2008:81) observe that: “He was actually parodying a statement by the Catholic Church that each ejaculation contained a potential human life and that masturbation and contraception thus ended this life.” The thelemite Duquette (1993:xv) shares this interpretation.
Symbolic language and language that is deliberately deceptive and obfuscational is extremely common in magical treatises such as those by Crowley and by practitioners of other magical traditions of a similar nature. The argument that Crowley was speaking symbolically is consistent with his other writings and his character. In the biographies and literature on Crowley that I have read, there is no mention of any historical evidence that Crowley actually engaged in human sacrifice. I think the suggestion is quite implausible.
It is clear that the thelemites and the O.T.O. reject the idea of human sacrifice. There is no evidence that it is part of their practice.
[69] Exhibit A4
Notwithstanding the respondent’s vigorous cross examination of Professor Ezzy, his evidence was not shaken. He was a credible witness. The Tribunal accepted his evidence. He corroborated the applicant’s evidence about the OTO.
The applicant stated in his application that the comments published by the respondent on the website Love For Life contained imputations that he ‘individually and by virtue of his involvement with the Ordo Templii Orientis (OTO), is a Satanist, is a member of a satanic organization and engages in a range of criminal activities which include murder, pedophilia and cannibalism.’
The applicant does not have to prove that the imputation is false or that it actually caused him harm, or that the respondent meant it to cause harm. On the other hand, just because an imputation hurts or upsets the applicant, does not mean that it is defamatory. It must affect the applicant’s reputation in a damaging way.
Having considered all of the evidence, the Tribunal is satisfied and finds that there is no truth in the comments about the OTO and the applicant published by the respondent.
Having taken into consideration the above matters, the Tribunal is satisfied and finds that the natural and ordinary meaning of the publications taken as a whole is capable of a defamatory meaning and that ordinary and reasonable members of society would understand that the words were capable of being defamatory.
The Tribunal is not satisfied that ordinary and reasonable members of society would regard the publications as asserting the applicant’s innocence of any wrongdoing. They falsely impute or attribute that the applicant, who is identified by name and occupation in Exhibit A1 and by name, photograph and other identifying material in Exhibit A2, is a Satanist, part of a devil worshipping group, a murderer, a cannibal, a paedophile and a criminal. They also falsely impute that the applicant used his employment with the Department of Immigration to import children for these purposes and that he, as a member of the OTO, is a threat to persons posting material about the OTO as it is comprised of thugs. These publications affect the applicant’s reputation in a damaging way.
The 14 December 2014 publication
On 14 December 2014 the respondent’s website republished details of the cases referred to above, the VCAT proceedings and the earlier tribunal decision against the respondents. These republications identified the applicant.
The respondent conceded[70] that her partner, Arthur Cristian, had been responsible for these postings in December 2014. She stated that he was extremely angry when he found out about the judgment against them[71] and that ‘Arthur’s response was to begin posting details about the ACAT case and the defendant and the whole subject of ritual sexual and Satanic abuse on both the website and Facebook’[72]. This included the text file of the original comments from the respondent’s website in May 2014 that the applicant had objected to. The respondent said[73]:
The living MAN Arthur wanted the wider networks reached across the internet to be provided with full disclosure and transparency as to how the David Bottrill matter started and what has transpired since.
[70] Exhibit A1, page 232, Affidavit Fiona Caroline Cristian affirmed 24February 2015 [10][14]
[71] The tribunal decision dated 10 December 2014
[72] Exhibit A2, page 232, Affidavit Fiona Caroline Cristian affirmed 24 February 2015 [10]
[73] Exhibit A2 page 226
The republication on 14 December 2014 was a deliberate republication of the material posted and published in March 2014 and ensured that the material continued to be in the public domain notwithstanding that the respondent had been aware since receiving the concerns notices in May 2014 that the applicant had asserted that a number of the comments defamed him, that the respondent had published references to previous cases and included text which acknowledged that no evidence had been produced to support the defamatory claims and the republication by the respondent was either malicious or negligent.
These publications included the following statement:
The name David Bottrill has been linked over and over again by many many unrelated people to the importation of children from other countries for ritual sacrifice amongst other claims involving paedophilia.[74]
[74] Exhibit A2 page 44
The respondent did not provide any independent evidence to substantiate the claim in this statement. Further, the publication continued to provide hyperlinks to the Michaelson document headed ‘The Paedophile and Satanic Network in Australia involving Government Officials, Leading Politicians, Television Executives, Top TV Presenters and the Police’ which was the subject of the Michaelson Proceedings in VCAT.
Notwithstanding the outcome of the ACT proceedings and the VCAT proceedings and the tribunal decision dated 10 December 2014 as well as the fact that the respondent had sought and not received any first hand confirmation from Michael Borusiewicz to support his allegations, the Tribunal finds that in republishing the material on 14 December 2014 the respondent adopted and promoted the defamatory material.
Issue ii. Whether the respondent is liable as owner of the webpage at the time of the upload of the words complained of and at the time of the notification by the applicant
In Piscioneri v Brisciani[75] the defendant was not one of the people who had made the posts on the defendant’s website, but the owner and operator of the website on which the posts were published. Burns J considered whether the defendant, as the owner and operator of the website, was capable of being held vicariously liable for the forum posts of others and said at [45]:
45. Although the defendant has not specifically raised this argument, I think it is necessary for me to determine whether the defendant can be held liable for the matter published on Zgeek, given that much of the material complained of is written by people other than the defendant. Internet content hosts can, in some circumstances, be vicariously liable for matter published by others, by virtue of the failure to remove from public display defamatory material published by the third party. In order to be vicariously liable, the host must have failed to remove the material after being notified of its existence, and the host must be a publisher, as opposed to a mere passive facilitator of the material: see Godfrey v Demon Internet [2001] QB 201; Bunt v Tilley [2006] EWHC 407; [2006] 3 All ER 336. In this case, I note that the defendant personally authored some of the ZGeek posts, indeed he initiated the discussion regarding the plaintiff in 2005, and was the owner and administrator of the site ZGeek at all relevant times during which other users posted relevant material on the website. The defendant gave evidence that, as the administrator and owner of ZGeek, he had the ability to moderate and remove any content that was posted on ZGeek.
46. I am satisfied that the defendant cannot be said to be a mere passive facilitator of the ZGeek posts, as his own post titled ‘Tool of the Week’ initiated the discussion of the plaintiff, he actively engaged in the ongoing discussion and he had the ability to remove the posts from ZGeek at any time. Whilst the defendant has not specifically argued this point and has implicitly accepted liability, I make it clear that I am satisfied that the defendant is directly liable for those posts he authored, and vicariously liable for the posts of other users, if I find them to be defamatory.
[75] [2015] ACTSC 106
The Respondent conceded she was the owner of the website at all times on which the posts were published. While she had not made the initial post, the Tribunal is satisfied that the post by Lukesarmy on 24 March 2014 remained on the website and in a further post on the webpage by Arthur and Fiona Cristian on 24 March 2014 and set out in [68] above, the Respondent downloaded and republished the full article by Michael Borusiewicz.
The respondent said she was aware that Arthur Cristian had, on 14 December 2014, reposted the texts which had been published on 24 March 2014 and which she said she had removed by 3 June 2014. The poster of these posts is described as ‘Arthur & Fiona Cristian’. The Tribunal is satisfied that the respondent was not a passive facilitator. She had the ability to remove posts from her website at any time. She is directly liable for the published posts and forums authored in her name and vicariously liable for the published posts and forums of other users.
Issue iii: If issues (i) and (ii) are answered in the affirmative, whether the respondent’s defences of freedom of speech and honest opinion are established
The respondent did not raise any of the defences in the CLW Act in her response. Rather she variously asserted that the comments on the loveforlife.com.au website are very, very rarely censored or removed[76]; that it is a freedom of speech website[77] and that the respondent did not do the major day to day operating of the website.[78] The Tribunal will consider the respondent’s assertion that her website is a freedom of speech website. The other assertions made by the respondent do not absolve her from being liable for the postings published on her website.
Freedom of Speech/Expression
[76] Exhibit R1 Page 4
[77] Exhibit A2 page 231 - Affidavit Fiona Caroline Cristian affirmed 24 February 2015 [1]
[78] Exhibit A2 page 231 - Affidavit Fiona Caroline Cristian affirmed 24 February 2015 [3]
Section 12 of the Human Rights Act 2004 refers to privacy and reputation and states:
12Privacy and reputation
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b)not to have his or her reputation unlawfully attacked.
Section 16 of the Human Rights Act 2004 states:
Freedom of expression
(1) Everyone has the right to hold opinions without interference.
(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.
Section 30 of the Human Rights Act 2004 states:
Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Section 115(b) of the CLW Act identifies that the objects of Chapter 9 include ensuring that the law of defamation does not place unreasonable limits on freedom of expression. Rights, including to freedom of expression, are rarely absolute. They carry with them special duties and responsibilities. Laws have placed limits on freedom of expression. Section 115(c) of the CLW Act identifies as an object of Chapter 9 providing effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.
The Tribunal is satisfied that Chapter 9 of the CLW Act is able to be interpreted in a way that is compatible with human rights. The Tribunal is not satisfied that Chapter 9 places unreasonable limits on freedom of expression. The rights to hold opinions and to freedom of expression are recognised in section 139B of the CLW Act – Honest Opinion. However, these rights are subject to the responsibility of not unlawfully attacking people’s reputations and to Chapter 9 of the CLW Act. The Tribunal will consider the defence of honest opinion below.
The Tribunal is not satisfied that the respondent’s right to freedom of expression gives her ‘open slather’ in what is published on her website. She cannot unlawfully attack people’s reputation. For publications in the Australian Capital Territory she is subject to Chapter 9 of the CLW Act.
The defence of honest opinion
The defence of honest opinion appears in section 139B of the CLW Act:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of—
(i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii) the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.The Tribunal has considered the evidence relied on by the parties. The respondent regarded Michael Borusiewicz, who was the owner of website, as the person liable for the comments he posted on her webpage on 24 March 2014 at 08:45. This contention must fail for the reason set out in [52] above. In defamation proceedings, it is the publication, not the composition of a libel, which is the actionable wrong.
The Tribunal is also satisfied from the evidence that on the same day, 24 March 2014 at 4:33pm, Arthur and Fiona Cristian referred to Michael Borusiewicz’s post and his hyperlink and then proceeded to publish on the website a copy of the webpage referred to in the hyperlink. The respondent had the opportunity to exercise editorial control over the content of the matter or over the publication of the matter before choosing to post and publish the webpage referred to in the hyperlink.
The posts which were published on and after 14 December 2014 were posted by Arthur Cristian. The names of the posters are ‘Arthur & Fiona Cristian’.
The respondent did not provide any or any credible evidence which would enable the Tribunal to be satisfied that the opinions published were honestly held by her, Arthur Cristian or Michael Borusiewicz and were based on proper material and related to a matter of public interest. Professor Ezzy’s evidence left the Tribunal in no doubt that the respondent’s published claims about the OTO were incorrect and not based on proper material.
In her response the respondent said that the comments published on her website were very, very rarely censored or removed. Notwithstanding that Michael Borusiewicz’s comments had been published on the respondent’s website since 2008 it was not until the respondent received the concerns notice that she contacted Michael Borusiewicz to ascertain on what material his comments had been based. The Tribunal has already found that the comments published were defamatory and that there was no truth in the comments. The defence of honest opinion fails.
The Tribunal finds that the respondent published, under the guise of freedom of speech, and without any editorial or ownership control, whatever material was posted on her website.
The tone and context of the posts published by the respondent are not trifling or inconsequential. The posts on and after 14 December 2014 were deliberate. The respondent has not provided any evidence that the circumstances of the publications were such that the applicant was unlikely to suffer harm.
The Tribunal is satisfied and finds, on the balance of probabilities, that the defences of freedom of speech/expression and honest opinion have not been established.
Issue iv. The quantum of damages
It is for the Tribunal to determine an appropriate amount of compensation to award the applicant for any damage suffered as a result of this defamation.
The Tribunal may award general or compensatory damages for a person's loss of reputation, shame or hurt feelings. The Tribunal may award aggravated damages (section 139F of the CLW Act) if and only if the circumstances of the publication are such as to warrant such an award, for example if the Tribunal considers that the defamation was deliberate, possibly out of ill will or any other improper motive such as malice. It cannot award exemplary or punitive damages for defamation.[79]
[79] Section 139H of the CLW Act
In Cerutti & Anor v Crestside Pty Ltd & Anor[80] the Queensland Court of Appeal said:
An award of general damages for the defamation of Mr Cerutti had to provide reparation for the harm done to his personal and business reputation, give consolation for the personal hurt and distress caused by the publications and vindicate his reputation.
To succeed upon their claims it was not necessary for either plaintiff to prove actual damage to reputation. It was not necessary for the plaintiffs to call witnesses to say that, as a result of having read the letters or as a result of their contents having been communicated to them “on the grapevine” they thought less of the plaintiffs. Some damage to reputation was presumed and no evidence was called to rebut the presumption of harm to reputation.[80] [2014] QCA 33 [58], [59]
The common law provides that general damages are to be assessed on what is necessary to compensate for injury to the applicant’s reputation, as a remedy for hurt feelings and to vindicate the applicant for having been defamed. The Tribunal has also to bear in mind the damages are to bear a rational relationship to the harm. Section 139E of the CLW Act states:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 139F of the CLW Act limits damages for non-economic loss. From 1 July 2015 the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $376,500.00.[81] However, as this application is brought in the ACT Civil and Administrative Tribunal the Tribunal’s jurisdiction is governed by section 18 of the ACAT Act. Pursuant to subsection 18(2)(a) of the ACAT Act the tribunal’s jurisdiction in a civil dispute is not more than $10,000.00.
[81] Civil Law (Wrongs) Non-economic Loss Declaration 2015 NI2015-226
The applicant alleged that the respondent republished the material on and after 14 December 2014 maliciously. Section 139G of the CLW Act states:
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
The respondent stated in her affidavit affirmed on 24 February 2015[82] that Arthur Cristian was extremely angry after finding out about the judgment against the respondent and himself in December 2014 and he responded by posting details, which the respondent published, about the tribunal case and the applicant and the whole subject of sexual and satanic abuse on both the respondent’s website and Facebook. He attached the text file of the original comments which the applicant had objected to. The respondent did not file a witness statement by Arthur Cristian in these proceedings. He did not give evidence or participate in the hearing.
[82] Exhibit A2, page 232 [10], [14]
The applicant said that he had taken the defamation action in the tribunal because he was looking for expediency. He hoped that his action would lead to the removal of the material. Instead once the respondent became aware of the tribunal decision she increased the publication of the material which he said[83]
defame me pretty much in the same terms by referring to the OTO as a satanic cult engaged in paedophilia and murder of children and its quite - and there’s references - multiple references to my actions here make it quite obvious that I am a member of the OTO. The OTO is a satanic ritual abuse cult which kills children and therefore I participate and partake of these activities.
[83] Transcript of Proceedings 21 October 2015 page 48, lines 34-39
Considering the respondent’s evidence above, the Tribunal cannot be satisfied that the repostings and republications referred to above were made in good faith and without ill will. The respondent was aware that her partner was reposting the materials on her website in December 2014 and, until ordered to by the Appeal Tribunal, she took no action to remove the published materials.
The Tribunal is satisfied that these publications demonstrated that the respondent wished to continue to inflict as much harm and damage to the applicant’s reputation as possible. The repostings and republishing on and following 14 December 2014 were vindictive.
Impact on the applicant
The applicant gave evidence of the effect of the publications on him. He said that he is a single parent of two minor children, both girls. When somebody posts something on a website and says that he is a paedophile, for him this is the worst claim that can be made of a parent; it causes him significant apprehension; serious concern and intense discomfort. He said:
it got to the stage where I was concerned, seriously concerned that every time that they [his daughters] were declined an invitation to a party or something like that that somebody had Googled [his name]. ….. these people are publishing material and it is still on line which causes me intense discomfort that I’m being called a pedophile. I’m a father of children who I love and protect and these people just sit in Bowral and publish material.[84]
He was very concerned that others had found out about these publications and were shunning or avoiding him or his children. He said[85]:
So the level of care with which people are reading this material is not very high. They are reading headlines. They are reading ‘David Bottrill paedophile’, ‘David Bottrill child abuser’. There are pages which I have submitted which show pictures of Rolf Harris, who had been convicted of sexual assault. Pictures of Reina Michaelson and I’m mentioned on the same documents and there is Jimmy Saville there as well. The line – the person (reading) this document is going to look, see ‘convicted paedophile’ ‘accused paedophile’, person who is accused in Australia there’s a paedophile ring and my name is plastered all over this as well. There’s my name and address, there’s my work details, there’s a picture of me, this is identical to what happened in a previous case with Michael Borusiewicz…
[84] Transcript of Proceedings 21 October 2015 page 130, lines 22 - 26
[85] Transcript of Proceedings 21 October 2015 page 129, lines 4 - 15
The applicant was identified in the material as working at the Department of Immigration and accused of using his work to import children and sex workers for illegal activities and to engage in criminal activities. He has a security clearance at his workplace and he has had to declare the publications to security at his workplace and inform his department that he has been accused of being a paedophile and of engaging in criminal activities. He has had people who have referred him to the loveforlife.com website telling him that he is on this website. A work colleague, who was a new arrival, informed him she had googled his name and asked him if he knew about this material on the respondent’s website. He said the work colleague was practically unknown to him prior to this conversation and he had to explain that there was no truth to the allegations and that he was pursuing legal action. His sister, who resides in Western Australia and whom he had not told about the matter, also referred him to the respondent’s website. He also said that there was a comment by Annette Bornemann on the respondent’s website that she had referred the applicant’s name to the Royal Commission into Child Abuse enquiry and that she had made a submission to that Commission.[86]
[86] Transcript of Proceedings 21 October 2015 pages 44 - 46
In her Statutory Declaration dated 19 August 2014[87] Debra Anne Thomas stated:
I know the plaintiff David Bottrill and in early May 2014 while in the ACT I viewed a number of websites [including which mention David by name and/or referred to the organization, the Ordo Templii Orientis, of which he was formerly the National Treasurer, in defamatory terms including that he engaged in criminal acts which include child abuse, murder, cannibalism and used his employment to facilitate these acts and that he covered up for others performing these crimes.
[87] Exhibit A3 [1]
The applicant said that there were multiple references to the organisation, the OTO, and multiple references to himself as a member and former treasurer of that organisation. He submitted that the comments about the OTO and its membership are references to him.[88] In fact, he was identified as being from the OTO in the first post of 24 March 2014 – ‘I am being sued by David Bottrill from the OTO’. He said that the imputations included that the OTO was comprised of thugs, and persons posting the material were in danger of physical harm from the OTO implying that he is part and parcel of the threats to those persons. Further imputations were that the O.T.O. was not a religion but a paedophile group whose members were paedophiles and that he is a member of a Satanic cult which advocates torture, child abuse and paedophilia and engages in child sacrifice and paedophilia.
[88] Transcript page 16 lines 21 - 24
The respondent told the Tribunal that she had removed the applicant’s name from their website by 3 June 2014. She said she had done this in response to the applicant’s concerns notices. It appears that, in some instances, the respondent substituted the word ‘sanitised’ for David Bottrill .She said she took three weeks to do that as she gave Michael Borusiewicz a period of three weeks to verify the contents of his posts. She did not immediately remove the posts notwithstanding that the concerns notice sent to her by the applicant referred to the Michaelson proceedings and the fact that Dr Michaelson had not produced any evidence to support her claims.
However, the Tribunal was not able to accept the respondent’s evidence that she had removed the defamatory material from her website by 3 June 2014. The applicant provided a page he had downloaded on 11 July 2014[89] from the respondent’s website stating:
David Bottrill & His Satanic
O.T.O. Paedophile Networks
Threatening to Attack LoveForLife.com.au
And Fiona Cristian
Arthur & Fiona Cristian
Love For Life – 20th May 2014Exhibit A2 page 39
On 22 December 2014 the applicant’s Google custom search ‘Bottrill site:loveforlife.com.au’[90] produced the following references to publications on 11 and 13 June 2014 on the respondent’s website:
The Psyop Program Scam behind Religion Belief Faith…
Loveforlife.com.au/…/pyop-program-scam-behind-religion—belief-faith-
Jun 11, 2014 – David Bottrill & His Satanic O.T.O. Paedophile Networks Threatening to Attack LoveForLife.com.au, And Fiona Cristian Arthur & Fiona CristianA World of Words Is A World Of Lies By Arthur Cristian …
Loveforlife.com.au/…/world-words-world-lies-arthur-christian-live-lif1-13Jun 13, 2014 – David Bottrill & His Satanic O.T.O. Paedophile Networks Threatening to Attack LoveForLife.com.au, And Fiona Cristian Arthur & Fiona Cristian[90] Exhibit A2 page 41
The respondent said that the material republished on 14 December 2014 was not removed until around May 2015 as she was doing more adjustments to the website after the contempt proceedings in the ACT Magistrates Court in April 2015. In the interim the Appeal President had ordered on 28 January 2015 that she remove the defamatory material relative to the respondent from the website: and that she be restrained from publishing or continuing to publish any and all defamatory material relative to the respondent.
The applicant disagreed with the respondent’s claim that she had removed all references to him on her website by May 2015. On 8 September 2015 he had conducted a Google custom search of ‘Bottrill’ which produced 45 results on the loveforelife.com.au website.[91] He told the Tribunal that he had searched his name on Google just before the hearing and found it showing up 14 times in one page written on the respondent’s website.[92]
[91] Transcript of Proceedings 21 October 2015 page 24 , line 29
[92] Transcript of Proceedings 21 October 2015 page 128, line 44
The respondent said in relation the applicant’s evidence that his name was still showing up on articles published on her website:
… he possibly forgets that I am very busy because (indistinct) because that’s how we can afford to live and they are responsibilities I can’t put aside. So work that I have done on the website has not always been as fast as it could have because I cannot literally decide right, I’m going to spend the next few days working on (indistinct) because I can’t ignore my other responsibilities (indistinct).[93]
[93] Transcript of Proceedings 21 October 2015 page 131, lines 18 - 23
Given the Tribunal’s finding that the published material is defamatory and the impact of those publications on the applicant’s reputation the Tribunal will award the applicant damages and make orders requiring the respondent to remove all defamatory materials relating to the applicant from her website.
Mitigation of damages
The factors which can be taken into consideration in the mitigation of damages are set out in section 139I of the CLW Act which states:
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
In the concerns notice the applicant had invited the respondent to offer to make amends pursuant to section 124 of the CLW Act. The respondent did not offer to the applicant to make amends. Rather, it appears from her evidence that she left the material on her website and asked Michael Borusiewicz to verify the contents of the articles he had posted on the respondent’s website on 24 March 2014. When she had not heard back from him by 3 June 2014 she said that she deleted the postings made by Michael Borusiewicz.
It would have been prudent, in the circumstances, for the respondent to have read the information published on her website, to know that the materials published were defamatory and to immediately delete the published contents at the latest when she received the concerns notice on 17 May 2014. If she was uncertain whether the material was defamatory she could have and should have obtained legal advice as soon as practicable. There was no credible explanation, in the circumstances, which might have persuaded the Tribunal that the period of three weeks taken by the respondent after receiving the concerns notice was a reasonable period of time to, as she said, remove the material. She did not respond to the applicant’s concerns notice during this period.
The respondent had ample opportunity, once she received the first concerns notice, to make an offer of amends to the applicant. She, as the owner of the website, was liable for what was published on her website. The respondent has not made any offer of amends to the applicant. Nor has she published a correction of the defamatory material. Instead, the respondent persisted in defending the publications and in defending the application.
The applicant obtained a judgment against Michael Borusiewicz on 10 December 2014 (‘the Borusiewicz website decision’) for $10,000 and a judgment against Michael Borusiewicz on 31 March 2014 (‘the Borusiewicz Facebook decision’) for $10,000. The damages were for defamation in relation to the publication of matter on his webpage and on the Facebook of which he was an administrator, some of it having the same meaning or effect as the matter which the Tribunal has found to be defamatory in this matter.
However, while taking this into account in assessing damages in relation to the defamatory material published on 24 March 2014, the Tribunal cannot ignore the deliberate reposting and promoting of the defamatory material which the respondent allowed to be published on her website on 14 December 2014 and to remain on her website, on her evidence, until at least around May 2015.
The applicant said “their actions [in republishing the material] have just reinvigorated the hurt.”[94] This further series of publications continued his offence and distress and attacked his personal integrity. The applicant seeks aggravated damages.
[94] Transcript of Proceedings 21 October 2015 page 130, line 40
In Visscher v Maritime Union of Australia (No. 6)[95] Beech-Jones said at [231]
The type of conduct that justifies this approach (aggravated damages) must be lacking in bona fides, improper or unjustifiable (Trigell v Pheeny [1951] HCA 23; 91951) 82 CLR 497 at 514) and can include conduct from the “time of publication to the eventual verdict” (Carson v John Fairfax & Sons Ltd [1993] HCA31; 178 CLR 44 at 69 per Brennan J).
[95] [2014] NSWSC 350
The Tribunal finds that the respondent’s refusal to offer some form of apology to the applicant after receipt of the concerns notice, the maintenance of articles on the website, the republication of the articles in December 2014 and the maintenance of those articles and references to the applicant on the website, until at the earliest, May 2015 was unjustifiable conduct. The applicant is entitled to aggravated damages.
While with the internet there can be a problem of not knowing precisely how many people read the internet publications complained of, in this case the Tribunal has taken into consideration that on 14 June 2014 the stated the ‘Current number of subscribers: 7512 and on 29 August 2014 that stated that the website traffic estimation has a global rank of 461,805, reaches roughly 6,274 unique users each month or 207 per day.
The Tribunal also noted that the respondent stated in her affidavit[96]:
The Love For Life website has been going for nearly 10 years. Including all posts, comments, articles, videos, podcasts, etc there are probably 30,000 individual different items on the website which has had over 270 million people go through it.
[96] Exhibit A2 page 233 [18]
Considering the respondent’s conduct from the time of publication to the eventual hearing the Tribunal is not satisfied that the fact that the applicant has obtained judgments against Michael Borusiewicz should mitigate the damages to be assessed.
The Tribunal accepted the applicant’s evidence of the impact of the serious imputations on him in his personal and professional life. The Tribunal is obliged to ensure that there is a rational relationship between the harm sustained by the applicant and the damages awarded. The Tribunal is also limited to its jurisdiction of $10,000 in civil disputes.
Given all of the above matters, the Tribunal considers that it is appropriate to award the applicant damages of $10,000 inclusive of aggravated damages.
The applicant also seeks interest. As the Tribunal’s award includes aggravated damages the Tribunal is not satisfied that interest should also be awarded.
The Tribunal considers it appropriate to grant the applicant the relief sought by requiring the respondent to remove the defamatory material and like imputations on any website owned or controlled by her.
Decision
The Tribunal is satisfied and finds that the respondent defamed the applicant through the publications on her website which are the subject of this application.
Judgment is entered for the applicant for damages in the sum of $10,000.00, being the amount sought by the applicant and the limit of the Tribunal’s jurisdiction, plus $130.00 allowable costs.
The respondent, immediately upon service of these Orders on her, is to remove all defamatory materials and like imputations relating to the applicant, on any website owned or controlled by her, including any hyperlinks.
The respondent is to pay the sum of $10,130 to the applicant within 28 days of these Orders.
………………………………..
President E Symons
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